Free Order Re Service - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT WILLIAM CONNELLY v. DAVID COSGROVE, et al. : : : : :

PRISONER CASE NO. 3:00-cv-720 (JCH) SEPTEMBER 24, 2004

RULING AND ORDER RE: Dkt. No. 44 The plaintiff, currently an inmate at the Greensville Correctional Institution in Jarratt, Virginia, brings this civil rights action pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. On March 13, 2003, this court granted a Motion to Withdraw Claims [Dkt. No. 27] as to defendant Talton, dismissed all claims in the amended complaint with prejudice as to defendants Cosgrove, Wolff, Selig, Zacyzynski, Scott, Norko, Young, Lorenzen, DeVeau and John Does Nos. 1-6; dismissed without prejudice to reopen and replead for failure to state a claim, all claims against defendants Wollenhaupt, Silvis, Clerk of Court and John Does Nos. 7-11 and as to the conspiracy claims against defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka; and dismissed without prejudice to reopen and replead all other claims as to defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies prior to filing suit. [Dkt. No. 28] The court also declined to exercise supplemental jurisdiction over the plaintiff's state law claims. On March 18, 2003, the court entered judgment dismissing the amended complaint. On October 16, 2003, the court denied the plaintiff's motion for extension of time to exhaust his administrative remedies before filing his amended complaint and denied

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his motion to reopen without prejudice. (See Dkt. No. 40.) The court permitted the plaintiff thirty days to file a Second Amended Complaint provided he could allege facts to state a claim against defendants Wollenhaupt, Silvis, Clerk of Court and John Does Nos. 7-11 and/or provide evidence of exhaustion of administrative remedies as to his claims against defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka. The court informed the plaintiff that he must attach evidence to his Amended Complaint that he had exhausted his administrative remedies with respect to the claims against defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka. On November 21, 2003, the plaintiff filed a Second Amended Complaint. (Dkt. No. 44) In accordance with the court's Ruling, the Clerk then reopened the case. The plaintiff's Second Amended Complaint names Patricia Wollenhaupt, Timothy Silvis, Clerk of Court, John/Jane Doe No. 7, John Does Nos. 8-11, Virginia Golemba, Mark Strange, John O'Neill, Christine Whidden, C.O. Serrano and John Cupka as defendants. The plaintiff filed his Amended Complaint pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. After reviewing the plaintiff's Second Amended Complaint, the court concludes that some claims still fail to state a claim upon which relief may be granted. Accordingly, the claims against defendants Patricia Wollenhaupt, Timothy Silvis, Clerk of Court and John Does Nos. 7-11 will be dismissed. The plaintiff alleges that Dr. Timothy Silvis and Nurse Patricia Wollenhaupt delayed his access to "prostate specific antigen testing and reporting of the results" and ignored his request for a digital examination. Second Am. Compl. at 11-12. Nurse Wollenhaupt also informed the plaintiff that his claim was not grievable. The plaintiff 2

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claims that Nurse Wollenhaupt denied him medical treatment despite his filing of a grievance and letters to Warden Strange and the Governor. The plaintiff claims that both Dr. Silvis and Nurse Wollenhaupt delayed his access to medical treatment or testing in an attempt to chill his freedom of expression and to retaliate "for budget cuts favored by Republicans in the executive and legislative branches; thereby making a scapegoat of the plaintiff. . . ." Id. at 11, 13. The Clerk of the Hartford Superior Court failed to process plaintiff's subpoenas in connection with his habeas hearing in September 1999. The plaintiff sought to subpoena an individual who was an expert in early release programs as well as documents concerning early release practices of the Department of Correction. Because the Clerk failed to process the subpoenas, the plaintiff was forced to rely on the respondent's records specialist who knew nothing about early release eligibility. The plaintiff alleges that John/Jane Doe No. 7 was a mail clerk at MacDougall Correctional Institution, who hindered his access to courts by mishandling his mail. He claims that his mail was occasionally delayed or confiscated, and he could not effectively prosecute his civil and criminal actions. He alleges that he lost his criminal appeal and received adverse rulings in his civil rights actions due to the improper handling of his legal mail. On the day the plaintiff was to argue the appeal of his criminal conviction before the Connecticut Appellate Court, John Doe No. 8, correctional officer at MacDougall Correctional Institution, deprived the plaintiff of sleep and scrambled his legal papers. The plaintiff claims that he performed poorly at oral argument and the judgment of the 3

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trial court was affirmed. On November 30, 2000, the plaintiff was scheduled for oral argument at the Connecticut Supreme Court. John Doe No. 10 awakened him too early, kept him up for close to two hours and then sent him back to his cell to await the transport vehicle. John Doe No. 9, an Assistant Clerk employed by the Connecticut Appellate Court required the plaintiff to file his first appellate brief prior to the entry of final judgment by the trial court in his habeas proceeding. The plaintiff claims that he was forced to speculate regarding the issues on appeal and was unable to develop key arguments in his reply brief due to strict page limits. The plaintiff alleges that the trial court denied his habeas and the Connecticut Supreme Court affirmed the decision. John Doe No. 11 repeatedly searched the plaintiff's cell during his incarceration at MacDougall Correctional Institution. During the searches several of plaintiff's legal documents disappeared. The plaintiff sues the defendants in their official and individual capacities for monetary damages. He also seeks injunctive relief against defendant Cupka. The plaintiff has met the requirements of 28 U.S.C. § 1915(a) and has been granted leave to proceed in forma pauperis in this action. Pursuant to 28 U.S.C. § 1915(e)(2)(B), "the court shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious; . . . fails to state a claim on which relief may be granted; or . . . seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915 (e)(2)(B)(I) - (iii). Thus, the dismissal of a complaint by a district court under any of the three enumerated sections in 28 U.S.C. § 1915(e)(2)(B) is 4

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mandatory rather than discretionary. See Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000). "[W]hen an in forma pauperis plaintiff raises a cognizable claim, his complaint may not be dismissed sua sponte for frivolousness under § 1915 (e)(2)(B)(I) even if the complaint fails to `flesh out all of the requisite details.'" Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (quoting Nance v Kelly, 912 F.2d 605, 607 (2d Cir. 1990)). An action is "frivolous" when either: (1) "the `factual contentions are clearly baseless,' such as when allegations are the product of delusion or fantasy;" or (2) "the claim is `based on an indisputably meritless legal theory.'" Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104 L.Ed.2d 338 (1989)). A claim is based on an "indisputably meritless legal theory" when either the claim lacks an arguable basis in law, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam), or a dispositive defense clearly exists on the face of the complaint. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995). Livingston, 141 F.3d at 437. The court exercises caution in dismissing a case under section 1915(e) because a claim that the court perceives as likely to be unsuccessful is not necessarily frivolous. See Neitzke v. Williams, 490 U.S. 319, 329 (1989). A district court must also dismiss a complaint if it fails to state a claim upon which relief may be granted. See 28 U.S.C. 1915(e)(2)(B)(ii) ("the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal . . . (ii) fails to state a claim upon which relief may be granted"); Cruz, 202 F.3d at 596 ("Prison Litigation Reform Act . . . which redesignated § 1915(d) as § 1915(e) [ ] provided that

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dismissal for failure to state a claim is mandatory"). In reviewing the complaint, the court "accept[s] as true all factual allegations in the complaint" and draws inferences from these allegations in the light most favorable to the plaintiff. Cruz, 202 F.3d at 596 (citing King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999)). Dismissal of the complaint under 28 U.S.C. 1915(e)(2)(B)(ii), is only appropriate if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 597 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In addition, "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim," the court should permit "a pro se plaintiff who is proceeding in forma pauperis" to file an amended complaint that states a claim upon which relief may be granted. Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). A district court is also required to dismiss a complaint if the plaintiff seeks monetary damages from a defendant who is immune from suit. See 28 U.S.C. § 1915(e)(2)(B)(iii); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) (affirming dismissal pursuant to § 1915(e)(2)(B)(iii) of official capacity claims in a section 1983 action because "the Eleventh Amendment immunizes state officials sued for damages in their official capacity"). In order to state a claim for relief under section 1983 of the Civil Rights Act, the plaintiff must satisfy a two-part test. First, the plaintiff must allege facts demonstrating that the defendant acted under color of state law. Second, the plaintiff must allege facts demonstrating that he has been deprived by the defendant of a constitutionally or 6

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federally protected right. Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)). I. Official Capacity Claims For Monetary Damages The plaintiff seeks damages from all defendants and injunctive relief from defendant Cupka. Generally, a suit for recovery of money may not be maintained against the state itself, or against any agency or department of the state, unless the state has waived its sovereign immunity under the Eleventh Amendment. See Florida Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 684 (1982). Section 1983 does not override a state's Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 342 (1979). The Eleventh Amendment immunity that protects the state from suits for monetary relief also protects state officials sued for damages in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985). A suit against a defendant in his official capacity is ultimately a suit against the state if any recovery would be expended from the public treasury. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984). The defendants are sued in their individual and official capacities for monetary damages. Any monetary recovery by the plaintiff against the defendants in their official capacities, however, would constitute a recovery against the state and as such this suit is not actionable. The claims as to all defendants for money damages in their official capacities are dismissed. See Neitzke, 490 U.S. at 327; see also 28 U.S.C. § 1915(e)(2)(B)(iii).

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II.

Defendants Silvis and Wollenhaupt The plaintiff alleges Dr. Silvis and Nurse Wollenhaupt failed to timely respond to

his request for prostate testing and his request for a digital examination and denied him treatment for two years. The Eighth Amendment protects inmates from deliberate indifference by prison officials to their serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a claim, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106. A prisoner must show intent to either deny or unreasonably delay access to needed medical care or the wanton infliction of unnecessary pain by prison personnel. See id. at 104-05. Mere negligence will not support a section 1983 claim; the conduct complained of must "shock[ ] the conscience" or constitute a "barbarous act." McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988). A treating physician will be liable under the Eighth Amendment only if his conduct is "repugnant to the conscience of mankind." Tomarkin v. Ward, 534 F. Supp. 1224, 1230 (S.D.N.Y. 1982) (quoting Estelle, 429 U.S. at 105-06). Thus, a claim of misdiagnosis, faulty judgment, or malpractice without more to indicate deliberate indifference, is not cognizable under section 1983. See McCabe v. Nassau County Medical Center, 453 F.2d 698, 704 (2d Cir. 1971); Tomarkin v. Ward, 534 F. Supp. 1224, 1230 (S.D.N.Y. 1982). In addition, mere disagreement with prison officials about what constitutes appropriate medical care does not state a claim cognizable under the Eighth Amendment. See Hyde v. Mcinnis, 429 F.2d 864, 868 (2d Cir. 1970); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972); Ross v. Kelly, 784 F. 8

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Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992), cert. denied, 506 U.S. 1040 (1992). There are both subjective and objective components to the deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). The alleged deprivation must be "sufficiently serious" in objective terms. Wilson v. Seiter, 501 U.S. 294, 298 (1991). The Second Circuit has identified several factors that are highly relevant to the inquiry into the seriousness of a medical condition: "`[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d. Cir. 1998) (citation omitted). In addition, where the denial of treatment causes plaintiff to suffer a permanent loss or subjects the plaintiff to the possibility of necessary invasive treatment, the medical need is considered serious. See Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000). In addition to demonstrating a serious medical need to satisfy the objective component of the deliberate indifference standard, an inmate also must present evidence that, subjectively, the charged prison official acted with "a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66. "[A] prison official does not act in a deliberately indifferent manner unless that official `knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 9

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(1994)). Here, the plaintiff does not allege that he suffers from a serious condition. He claims that Dr. Silvis and Nurse Wollenhaupt failed to respond to his request for "prostate specific antigen testing" and a digital examination in a timely manner. In addition, after he had undergone the tests, they failed to provide him with the test results in a timely manner. He does not allege that the tests revealed that he suffers from any injury to his prostate. Thus, the court concludes that the plaintiff has failed to allege that he suffered from a serious medical need as required to state a claim under the Eighth Amendment. Accordingly, the plaintiff's claims against defendants Silvis and Wollenhaupt are dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). III. Defendants Clerk of Hartford Superior Court, John/Jane Doe No. 7 and John Does Nos. 8, 9 and 10 The plaintiff's Second Amended Complaint includes allegations that defendants Clerk of Hartford Superior Court, John/Jane Doe No. 7 and John Does Nos. 8, 9 and 10 violated his right of access to the courts. Specifically, the plaintiff alleges that the Clerk of the Superior Court failed to process his subpoenas in connection with a September 29, 1999 hearing in a state habeas matter, John Doe No. 9, an Assistant Clerk of the Connecticut Appellate Court, required him to file an appellate brief before final judgment was entered by the trial court; John Doe No. 8 caused him to suffer sleep deprivation before he was to argue before the Connecticut Appellate Court; John Doe No. 10 woke him too early and initially put him on the wrong transportation list on the day he was

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scheduled to argue before the Connecticut Supreme Court, and John/Jane Doe No. 7 occasionally mishandled his legal mail. "It is now established beyond doubt that prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court clarified what is encompassed in an inmate's right of access to the courts and what constitutes standing to bring a claim for the violation of that right. First, the Court held that to demonstrate a violation of his right of access to the courts, an inmate must allege an actual injury. Id. at 351. In addition, the Court observed that "the injury requirement is not satisfied by just any type of frustrated legal claim." Id. at 354. The Court stated that: Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-andfall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration. Id. at 355. Here, the plaintiff has not alleged that the Clerk of Court's denial of his requests for subpoenas in connection with his habeas proceeding relating to early release eligibility had any impact on the decision rendered by the trial court. In fact, the plaintiff concedes that he prevailed in his state habeas petition. See Second Am. Compl. at 20; Connelly v. Warden, No. CV 970567686, 2000 WL 72039 (Conn. Super. Ct. Jan. 11,

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2000). The plaintiff alleges that John Doe No. 8 caused him to suffer sleep deprivation before he was scheduled to argue before the Connecticut Appellate Court on direct appeal of his conviction. As a result, he performed poorly, and the Connecticut Appellate Court affirmed his conviction. Oral argument on the plaintiff's appeal of his conviction to the Connecticut Appellate Court was heard on March 4, 1997, more than three years before the plaintiff filed this action. See Connelly v. State, 46 Conn. App. 486, 700 A.2d 694 (1997). Thus, the claim is barred by the statute of limitations. See Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994); In re State Police Litigation, 888 F. Supp. 1235, 1248-49 (D. Conn. 1995). In addition, even if it were not barred, the plaintiff does not allege that he made an effort to file a supplemental brief after oral argument. He did file a petition for certification to appeal the decision of the Connecticut Appellate Court to the Connecticut Supreme Court and subsequently a writ of certiorari to the United States Supreme Court. Thus, the plaintiff has failed to allege that he was prejudiced by John Doe No. 8's action prior to oral argument. The plaintiff alleges that John/Jane Doe No. 7 was a mail clerk at MacDougall Correctional Institution who occasionally mishandled his legal mail. The plaintiff alleges the mishandling of his mail caused him to lose the appeal of his criminal conviction and led to adverse rulings in his civil actions. As stated above, the plaintiff concedes that he argued before the Connecticut Appellate Court and further appealed his conviction to the Connecticut and United States Supreme Courts. The Connecticut Appellate Court affirmed the plaintiff's conviction after a consideration of the merits of his claims. See 12

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Connelly v. State, 46 Conn. App. 486, 700 A.2d 694 (1997). Thus, the plaintiff does not allege that he was unable to appeal his conviction due to occasional delays and/or confiscation of his legal mail or that his appeal was dismissed on procedural grounds. Similarly, he does not allege that the improper handling of his legal mail prevented him from litigating his civil actions. See Lewis, 518 U.S. at 355 (fact that an inmate may not be able to litigate effectively once a claim is filed with the court does not demonstrate actual injury). The court concludes that the plaintiff has not alleged that he suffered an actual injury due to the claimed occasional mishandling of his legal mail by John/Jane Doe No. 7. The claims against John/Jane Doe No. 7 fail to state a claim under Lewis and are dismissed. The plaintiff alleges that in his appeal of a Superior Court decision in Connelly v. Commissioner of Correction, CV-98-0580759, an Appellate Court Clerk - John Doe No. 9, required him to file his brief before judgment had entered in Superior Court.1 He claims that he was unable to fully develop key arguments in his brief. The court notes, however, that although the plaintiff appealed to the Connecticut Appellate Court, the Connecticut Supreme Court transferred the appeal to itself pursuant to Connecticut General Statutes § 51-199(c) and Practice Book § 65-1. See Connelly v. Comm'r of Correction, 258 Conn. 374, 381, 780 A.2d 890, 896 (2001). After the case was transferred, the Connecticut Supreme Court heard oral argument in November 2000.

The plaintiff lists the case number as 98-059780. A review of the docket sheet from the case reveals that the correct case number is 98-0580759. It is clear from the plaintiff's amended complaint that he intended to refer to case number 98-0580759 because he cites an appellate court case number of A.C. 19758. That same number is also referenced on the state court's docket sheet.

1

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See id. at 375, 780 A.2d at 890. The plaintiff does not allege that he was unable to present all of his claims at oral argument. Thus, the plaintiff has failed to allege he was prejudiced by the premature filing of his brief with the Connecticut Appellate Court. The plaintiff alleges that John Doe No. 10 initially put him on the wrong transportation manifest on the day he was to argue before the Connecticut Supreme Court. The plaintiff does not allege that he did not arrive on time for oral argument that day or that John Doe No. 10's actions interfered with his ability to argue his case. Because the plaintiff fails to allege any actual injury flowing from the interference with the various legal proceedings set forth above, the plaintiff's allegations in these regards fail to state a claim under Lewis. Accordingly, the plaintiff's access-to-courts claims against defendants John/Jane Doe No. 7, John Does Nos. 8, 9 and 10 and the Clerk of the Hartford Superior Court are dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). IV. Retaliation Claims Against Defendants Silvis, Wollenhaupt and John Doe No. 9 The plaintiff alleges for the first time that Dr. Silvis and Nurse Wollenhaupt delayed access to prostate testing and examinations in an attempt to chill his freedom of speech and retaliate against him for "budget cuts favored by Republicans in the executive and legislative branches." Second Am. Compl. at 11, 13. The plaintiff also alleges for the first time that John Doe No. 9, Assistant Clerk of the Connecticut Appellate Court, required him to file a brief prior to judgment in the trial court in retaliation for his political opinions. See id. at 14.

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The plaintiff originally filed this action on April 20, 2000. The complaint includes claims against Dr. Silvis and Nurse Wollenhaupt concerning their alleged failure to provide the plaintiff with prostate testing in a timely manner. Thus, the delay in testing must have occurred prior to April 20, 2000. The complaint and First Amended Complaint do not include claims that Dr. Silvis and Nurse Wollenhaupt allegedly delayed medical treatment in retaliation for plaintiff's political views. The plaintiff's Second Amended Complaint was filed with the court on November 21, 2003. Thus, any claims of retaliation by defendants Silvis and Wollenahaupt, which are included in the Second Amended Complaint, are barred by the three year statute of limitations. See Lounsbury, 25 F.3d at 134. The plaintiff's retaliation claim against Appellate Clerk, John Doe No. 9, relates to an alleged order by the Clerk requiring the plaintiff to file a brief prior to the entry of judgment by the trial court in plaintiff's habeas corpus matter, Connelly v. State of Connecticut, Case no. CV-98-0580759. The court takes judicial notice of the docket sheet from the state habeas petition which reveals that judgment entered for the respondent on May 5, 1999, and again on January 25, 2000. Thus, any order by the Clerk prior to judgment would have occurred, at the latest, on January 24, 2000. Consequently, the claim of retaliation in the Third Amended Complaint, which was filed in November 2003, relating to the Clerk's Order to file a brief prior to judgment is barred by the statute of limitations. The retaliation claims against defendants Silvis, Wollenhaupt and John Doe No. 9 are dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). 15

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V.

Defendant John Doe No. 11 The plaintiff claims that John Doe No. 11 "repeatedly searched the plaintiff's cell,

prohibiting the plaintiff from observing the search, and several key legal documents disappeared from the plaintiff's files." Second Am. Compl. at 15. To the extent that the plaintiff is alleging that John Doe No. 11 illegally searched his cell without his being present, the allegation fails to state a claim upon which relief may be granted. Inmates do not forfeit all constitutional protections when they enter a correctional facility. "[I]t is settled that a prison inmate `retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Turner v. Safley, 482 U.S. 78, 95 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). The right of privacy inherent in the Fourth Amendment protection against unreasonable searches, however, "is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Hudson v. Palmer, 468 U.S. 517, 527-28 (1984); see also Roe v. Marcotte, 193 F.3d 72, 81-82 (2d Cir. 1999) (acknowledging that prisoners forfeit their Fourth Amendment rights regarding cell searches "for reasons of safety and orderly administration of prison facilities"). Thus, the court concludes that the Amended Complaint fails to allege a Fourth Amendment claim. In addition, to the extent that the plaintiff is attempting to allege that his right of access to the courts was violated when several key legal documents were missing from his files after the cell searches, the plaintiff has failed to allege that he suffered an 16

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actual injury as a result of the missing documents. See Lewis 518 U.S. at 349. The plaintiff does not allege any facts suggesting that the loss of these documents impeded his ability to file a complaint or caused a complaint or petition to be dismissed without a consideration of the merits of the claim. Because the plaintiff fails to allege any actual injury flowing from the loss of his legal documents, the plaintiff's allegations fail to state a claim under Lewis. Accordingly, for the reasons set forth above, the claims against John Doe No. 11 for repeated cell searches and loss of legal documents are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). VI. Claims Pursuant to 42 U.S.C. §§ 1985, 1986 Section 1985 prohibits conspiracies to interfere with civil rights. The plaintiff's allegations fail to comport with the requirements of 42 U.S.C. § 1985(1), (2) and (3). Subsection (1) of section 1985 prohibits conspiracies to prevent federal officials from performing their duties. Subsection (2) of section 1985 generally prohibits conspiracies aimed at deterring witnesses from participating in either a federal or state judicial proceeding. See Chahal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984). These two subsections are inapplicable to the plaintiff's claims. Generally, subsection (3) of section 1985 prohibits conspiracies to deprive persons of equal protection of the laws. In order to state a claim pursuant to this provision, a plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and 17

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immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Julian v. New York City Transit Auth., 857 F. Supp. 242, 252 ((E.D.N.Y. 1994), aff'd, 52 F.3d 312 (2d Cir. 1995). Furthermore, the conspiracy must be motivated by "`some racial or perhaps otherwise class based, invidious discriminatory animus . . . .'" Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d. Cir. 1993) (quoting United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). Section 1985(3) may not be construed as a "general federal tort law"; it does not provide a cause of action for "all tortious, conspiratorial interferences with the rights of others." Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). The plaintiff alleges that the defendants conspired against him to deprive him of equal protection of the laws and his rights as a citizen of the United States. He also claims the defendants conspired to dissuade him from filing cases in court and expressing his political opinions. The plaintiff alleges no facts in the Second Amended Complaint, however, from which racial motivation for the alleged unconstitutional actions of the defendants may be found or inferred. See Smith v. Walsh, 519 F. Supp. 853, 856 (D. Conn. 1981) (holding that the complaint must allege that there was racial or class-based animus behind the conspiracy). Because the plaintiff fails to allege a factual basis for a conspiracy claim, the plaintiff's section 1985 claims are dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii); Neitzke, 490 U.S. at 325.

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Under 42 U.S.C. § 1986, liability is imposed on an individual who has knowledge of wrongs prohibited under 42 U.S.C. § 1985, but fails to prevent them. Without a violation of section 1985, however, there can be no violation of section 1986. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) ("a Section 1986 claim must be predicated on a valid section 1985 claim"); Seguin v. City of Sterling Heights, 968 F.2d 584, 590 (6th Cir. 1992); Koch v. Mirza, 869 F. Supp. 1031, 1039 (W.D.N.Y. 1994); Mahoney v. N.O.W., 681 F. Supp. 129, 135 (D. Conn. 1987) ("where a plaintiff has no cause of action under section 1985, he can sustain no claim for neglect to prevent under section 1986."). As stated above, the plaintiff has failed to allege a factual basis for a section 1985 claim; accordingly, the plaintiff's claims under 42 U.S.C. § 1986 must also be dismissed as to all defendants. See 28 U.S.C. § 1915(e)(2)(B)(ii); Neitzke, 490 U.S. at 325. VII. Defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka The plaintiff includes various allegations against the above-named defendants in the Second Amended Complaint. He claims these defendants violated his constitutional rights by: (1) failing to properly calculate his early release date; (2) removing him from his prison job; (3) denying him visitation with relatives; (4) improperly transferring him to Virginia; (5) interfering with his legal mail; (6) improperly searching his cell; (7) confiscating plaintiff's mail addressed to the United States Postal Inspector; (8) "chemically interrogat[ing]" him; (9) depleting the resources of the prison library; (10) permitting other correctional employees to view a videotape of him being strip searched; (11) failing to award him good time credit for his job; (12) failing to respond to 19

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his inquiries; (13) failing to timely deliver his mail; and (14) disseminating confidential information to prison officials and inmates in Virginia. In response to the court's prior Ruling directing him to provide evidence of exhaustion of his administrative remedies with respect to these claims, the plaintiff states that he has written numerous complaints, letters and grievances concerning these claims but he no longer has copies of these documents due to his transfer to the Virginia Department of Correction. The court concludes that the plaintiff has sufficiently alleged that he has exhausted his administrative remedies as to the claims against defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka and has explained the reasons for not attaching copies of the letters, complaints and grievances to his Second Amended Complaint. Accordingly, the case will proceed as to the section 1983 claims against defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka . VIII. State Law Claims The plaintiff has asked the court to exercise supplemental jurisdiction over his state law claims fo assault, defamation and invasion of privacy. The Second Circuit has held that "the discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of [28 U.S.C. § 1367(c)]." Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447 (2d Cir. 1998). Section 1367(c) provides that district courts may decline to exercise supplemental jurisdiction over related claims only if:

(1)

the claim raises a novel or complex issue of State law; - 20 -

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(2)

the claim substantially predominates over the claim or claims over which the district court has original jurisdiction; the district court has dismissed all claims over which it has original jurisdiction; or in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

(3)

(4)

28 U.S.C. § 1367(c). In the instant case, none of the section 1367(c) categories are applicable. Accordingly, the state law claims will proceed. CONCLUSION For the reasons stated above, the claims for monetary damages against all defendants in their official capacities and all other claims against defendants Wollenhaupt, Silvis, Clerk of Court, John/Jane Doe No. 7 and John Does Nos. 8-11 are DISMISSED. See 28 U.S.C. § 1915(e)(2)(B)(I), (ii) and (iii). The claims against defendants Wollenhaupt, Silvis, Clerk of Court and John Does Nos. 8-11 are dismissed in their entirety. The court declines to exercise supplemental jurisdiction over the plaintiff's state law claims against defendants Wollenhaupt, Clerk of Court, John/Jane Doe No. 7 and John Does Nos. 8-11 because the court has dismissed all federal claims against these defendants. The case will proceed as to individual capacity claims against Virginia Golemba, Mark Strange, John O'Neill, Christine Whidden, C.O. Serrano and John Cupka as well as the official capacity claim for injunctive relief against defendant Cupka. To enable the U.S. Marshal to effect service of the Second Amended Complaint

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on the defendants, the plaintiff is directed to complete one Form 285 for each of the following defendants in his or her individual capacity: Virginia Golemba, Mark Strange, John O'Neill, Christine Whidden, C.O. Serrano and John Cupka. The plaintiff should use the addresses he has provided to the court in his Second Amended Complaint for these forms. The plaintiff is also directed to complete Form 285 to be served on defendant Cupka c/o Attorney General to be used to serve defendant Cupka in his official capacity. The address for the Attorney General is 55 Elm Street, Hartford, CT 06105. The plaintiff shall also complete one Notice of Lawsuit and Waiver of Service of Summons form and one Waiver of Service of Summons form for each of the above defendants in his or her individual capacity and one Notice of Lawsuit and Waiver of Service of Summons form and one Waiver of Service of Summons form for defendant Cupka in his official capacity. In addition, the plaintiff is directed to submit SEVEN copies of the Second Amended Complaint. The plaintiff shall complete and return the enclosed forms and the copies of the Second Amended Complaint within twenty days of the date of this order. The plaintiff is cautioned that failure to return the forms and/or copies of the Second Amended Complaint in a timely manner to the Clerk at 915 Lafayette Boulevard, Bridgeport, CT 06604, may result in the dismissal of this case as to any defendant for whom a form and/or copy of the Second Amended Complaint is not returned, without prejudice and without further notice from this court.

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Upon receipt of the Marshal forms, the Clerk is directed to forward the appropriate papers to the U.S. Marshal. The U.S. Marshal is directed to serve the complaint on defendants Golemba, Strange, O'Neill, Whidden, Serrano and Cupka in their individual capacities and on defendant Cupka in his official capacity and to file a return of service within sixty days of the date the U.S. Marshal receives the service papers from the Clerk's Office. Each defendant is hereby ordered to file an appearance within sixty (60) days from the date he or she signs a waiver of service of summons or thirty days from service. It is certified that any appeal in forma pauperis from this order would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a). SO ORDERED. Dated this 24th day of September, 2004, at Bridgeport, Connecticut.

/s/ Janet C. Hall Janet C. Hall United States District Judge

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